A new Lincoln book, The Broken Constitution

[Rob Wick]

Gene,

Here is Wilentz's review.

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Rob

Over the course of two days in February 1850, amid the debates in the U.S. Senate that would lead to the famous congressional compromise over slavery later that year, Jefferson Davis of Mississippi delivered a florid floor speech that lamented the impending ruin of the nation. (Exactly 11 years later, Davis would take office as the president of the Confederate States of America.) A flood of antislavery fanaticism and sectional hatred, Davis declaimed, had opened a “moral crevasse” that endangered America’s very foundations. The framers, Davis pronounced, had enshrined in the Constitution the right to hold property in humans, but frenzied antislavery Northerners undermined the law of the land; and now the flood was surging, pouring “turgid waters through the broken Constitution.”

Davis’s pro-slavery remarks provide Noah Feldman with both the epigraph and the title of his new book about Jefferson Davis’s nemesis, Abraham Lincoln, which seems a very odd choice. Unlike Davis, Lincoln never believed that the Constitution had been broken, even after the slaveholders began their rebellion in 1860-61. Instead, Lincoln charged that the insurrection Davis helped to lead was “the essence of anarchy.”

On both points, though, Feldman contends that Davis was right and Lincoln was wrong. Moreover, Feldman argues, despite Lincoln’s professed fidelity to the framers’ work, he was the one who finally broke the Constitution during the Civil War by turning the presidency into a quasi dictatorship, much as his Confederate and Copperhead enemies alleged he did. Only then, Feldman concludes, paradoxically, could America redeem its claims to nobility by purging the original sin of slavery, refounding itself by embracing what he calls a new, expansive “moral Constitution.”

Feldman’s reliance on Jefferson Davis to frame a book on Abraham Lincoln thus makes perfect sense: Aside from the slaveholders’ insistence on the ethical legitimacy of slavery, Feldman’s constitutional analysis consistently backs their arguments over Lincoln’s. Less than perfect, unfortunately, are the renderings of American history he offers to support his surprising thesis.

A professor at Harvard Law School and a prolific scholar and commentator on current affairs, Feldman is well equipped to assess Lincoln’s constitutional record. A lucid, provocative stylist and an expert in fields ranging from Islamic politics to the American separation of church and state, he is widely known for an illuminating political biography of James Madison. “The Broken Constitution” can be read as a sequel to that book, connecting the nation’s founding and early years to what Lincoln called the “astounding” outcome of the Civil War. Indeed, Feldman roots his interpretation of Lincoln and slavery in what he now calls the “compromise Constitution” that Madison and the other framers hammered out — the Constitution, he says, that Lincoln would eventually break.

From the start, however, Feldman’s depiction of the Constitution’s connection to slavery is questionable. Although he calls it the “compromise Constitution,” Feldman’s Constitution was almost seamlessly pro-slavery. The famous negotiations that offered concessions to the slaveholders come across more like abject submission. Feldman ignores the antislavery currents inside the Federal Convention that challenged and sometimes defeated the pro-slavery delegates. He overlooks how much the Constitution’s provision authorizing abolition of U.S. participation in the Atlantic slave trade was an antislavery victory over the lower South, which tried to block it as a dealbreaker — a measure that, even when weakened by a maneuver Madison bemoaned, was the first serious blow ever against the trade undertaken in the name of a national government. Feldman fails to see the Constitution as an ambiguous document that offered protections to the slaveholders but also contained considerable antislavery potential, sufficient for thoughtful if wishful Northern abolitionists like Benjamin Rush to hail it as the death knell of slavery.

Having erased the Constitution’s ambiguities over slavery, Feldman claims antislavery activists down to Lincoln could not seriously invoke the Constitution in order to attack slavery “because the Constitution said nothing against the practice.” With little more to go on than the wispy, hypocritical egalitarian phrases in the Declaration of Independence — dismissed by Feldman as “the slaveholders’ Declaration” — antislavery advocates supposedly railed against slavery with admirable moral fervor but feeble constitutional backing. When Lincoln carefully constructed a historical and constitutional argument for halting slavery’s expansion and hastening its doom for his famous Cooper Institute address in 1860, the result, Feldman contends, was an “odd performance” that incoherently identified antislavery possibilities in the framers’ “compromise Constitution.” Eradicating slavery, Feldman insists, would require breaking the very Constitution that Lincoln claimed to venerate.

In fact, as historians have been detailing for decades, antislavery spokesmen and organizations, from the framer Benjamin Franklin in 1790 up to and including Lincoln’s Republican Party, repeatedly seized upon provisions in the Constitution, from the preamble’s “general welfare” clause to the provision granting Congress authority over the national territories, as instruments to hasten slavery’s demise. Three generations of antislavery constitutionalists, while admitting that the Constitution barred Congress from directly abolishing slavery in the states where it already existed, pushed numerous strategies to place slavery, as Lincoln would put it, “in course of ultimate extinction.” The antislavery constitutionalists’ demands — above all to halt slavery’s expansion, bar the admission of new slaveholding states and uphold state laws that would obstruct the capture and return of fugitive slaves — in time persuaded no less stalwart an abolitionist than Frederick Douglass that the Constitution was a “glorious liberty document.” As incorporated in the Republican Party platform, those demands led directly to Lincoln’s ascension in 1860, Southern secession and the civil war that ended in slavery’s abolition.

Contrary to Jefferson Davis, Lincoln and the Republicans’ triumph did not break the Constitution; it broke the pro-slavery view of the Constitution while vindicating the long beleaguered antislavery view. Nor did Lincoln break an already broken Constitution by assuming quasi-dictatorial powers in order to preserve the Union. Feldman’s charge that Lincoln violated respect for constitutional popular sovereignty by refusing to acquiesce in Southern secession elides that the Constitution established the majority as sovereign in national affairs, and it rests on the assumption, rightly disputed by Lincoln, that the Southern fire-eaters truly represented the will of the Southern citizenry. Even President James Buchanan stated that secession was unconstitutional. Feldman’s criticisms of Lincoln for trivializing and then suspending habeas corpus in much of the North have more merit. Still, it strains credulity to indict Lincoln for tyranny because he took emergency actions, almost exclusively against Confederates, spies and other traitors, in order to save democratic government, all the while holding open elections and suffering the merciless attacks of Democrats.

Finally, Feldman cuts corners to claim that the Emancipation Proclamation was an arbitrary violation of slaveholders’ property rights. In reality, Lincoln wrote the proclamation armed with abundant legal opinion, including a well-known pronouncement of John Quincy Adams affirming the president’s authority to emancipate the enslaved when invasion or insurrection threatened the nation. As an antislavery constitutionalist, meanwhile, Lincoln never conceded an absolute right to property in humans.

Coming at a time when not a few scholars have been saying that our modern Constitution is broken, Feldman’s final paradox — that it took an elected tyrant to emancipate the enslaved and usher in a rebirth of American freedom — can sound ominous. Still, there should be no cause for alarm. “The Broken Constitution” displays its author’s usual brilliance and boldness in his contrarianism, and a passionate engagement with the past. What it lacks is historical soundness. In the end, Jefferson Davis’s constitutionalism proves, once again, no match for Abraham Lincoln’s.